Thanks to TV legal shows, most people know that any communications (phone conversations, e-mails, letters, etc.) you have with your lawyer are privileged from being disclosed to adverse parties in a lawsuit or criminal prosecution.
What many don’t know is how easy it is to lose that privilege. One simple way to lose: if that communication involves a third party, the privilege is probably lost. To be clear, “third parties” do not include employees or agents of the lawyer working with the lawyer on your case, or you and your employees involved in the case.But, for example, if you e-mail your attorney and reveal damaging or private information about your case and also happen to copy (or worse, blind-copy, your attorney doesn’t even know you did it!) a third party – the privilege is probably blown.
Now your opponent is arguably entitled to see that communication. As with all legal rules and interpretations of them, the exceptions are ample but err on the side of caution: if you’re emailing your attorney never include anyone else unless your attorney tells you otherwise. One final caution for this e-mail-centric world: if your attorney blind-copies you on an e-mail – DO NOT HIT “REPLY-ALL”. Too often, the client does so and includes really damaging information that the opposing party now gets to feast upon – privilege blown.
